The Marine Mammal Protection Act: A Looming Giant For Offshore Permitting. Ryan Steen Stoel Rives LLP October 7, 2015

Transcription

1 The Marine Mammal Protection Act: A Looming Giant For Offshore Permitting Ryan Steen Stoel Rives LLP October 7,

2 Roadmap Marine Mammal Protection Act Primer Section 101(a)(5) Incidental Take Authorizations Current and Future Developments Gulf of Mexico; Alaska; Atlantic Some Observations & Take-Aways 2

3 Marine Mammal Protection Act

4 MMPA A Brief History Enacted in 1972 Amended a number of times Basic Findings: Certain marine mammals are in danger of depletion/extinction Should not cease to be a significant functioning element in the ecosystem Must improve scientific knowledge 4

5 MMPA Basics All take is prohibited Some exceptions to the take prohibition Incidental Take Authorizations Section 101(a)(5) 5

6 MMPA Jurisdiction 6

7 MMPA Jurisdiction polar bear, walrus, sea otter, dugong, manatee 7

8 8

9 MMPA Incidental Take Take = harass, hunt, capture, or kill (or attempt to do so) Harassment = any act of pursuit, torment or annoyance that either: Has potential to injure LEVEL A Has potential to disturb LEVEL B 9

10 MMPA Incidental Take Harassment by Disturbance Causes the disruption of behavioral patterns E.g., Migration, Breathing, Nursing, Breeding, Feeding, Sheltering 10

11 MMPA Incidental Take Two Types of Authorization 1. Incidental Harassment Authorization MMPA 101(a)(5)(D) 2. Incidental Take Regulation (with Letters of Authorization) MMPA 101(a)(5)(A) 11

12 IHA Not a regulation Project-specific authorization Public notice and comment Up to a period of one year Only authorizes incidental take by harassment ITR Formal rulemaking (public notice and comment) Authorizes a specified activity, which is defined broadly Up to a period of five years Specific authorizations made through subsequent letters of authorization May authorize all forms of incidental take 12

13 LOA ITR PETITION ITR LOA LOA IHA APPLICATION IHA 13

14 Chukchi Sea ITR (oil and gas exploration), 75 Fed. Reg. 35,364 (June 12, 2013)

15 Apache Cook Inlet 2014 IHA Application

16 KEY REQUIREMENTS Specified Activity Specific Geographic Region Small Numbers Negligible Impact Least Practicable Impact No Unmitigable Adverse Impact on Availability for Subsistence 16

17 Small Number Negligible Impact 17

18 Least Practicable Impact Mitigation Measures Examples: Visual observation Exclusion & Disturbance Zones Ranges at which Level A and Level B take will not occur New acoustic criteria in the works 18

19 19

20 Least Practicable Impact More Examples: Speed and course alterations Time / area closures Separation of vessels Ramp-up / power-down / shut-down Poor visibility conditions Ambient monitoring Research Monitoring & Reporting Requirements 20

21 Current & Future Developments

22 Gulf of Mexico MMPA in the GOM? (not so much) ITR Petition by BOEM (MMS) 2002 first submitted 2011 amended Another amendment? Lawsuit Settlement NRDC, et al. v. Jewell, et al., No. 2:10- cv (E.D. La.) Best effort to complete ITR by 12/15 22

23 NEPA (briefly) EIS required for all major Federal actions significantly affecting the quality of the human environment. NO significant impact FONSI EA Significant impact EIS 23

24 Gulf of Mexico GOM ITR Petition 5-year period 21 marine mammal species 10,000s of Level A takes estimated 100,000s of Level B takes estimated ESA Compliance NEPA 24

25 Economic Analysis May Gulf of Mexico Regulatory Timeline (maybe) Duplicative Survey & Lowest Practicable Source Panel Mtgs Aug 2015 Feb 2016 BOEM Conducts Modelling 2014 July 2015 Long Term Monitoring Plan Request for Information November 2014 Long Term Monitoring Plan Webinars - March 2015 NEPA Draft Environmental Impact Statement March 2016 BOEM Files Revised MMPA Petition with NOAA Fisheries (NMFS) Dec Public Comment on MMPA Petition ESA Consultation March 2016 NMFS Publishes Proposed MMPA Incidental Take Regulations (ITR) September Public Comment on draft ITR & draft EIS NEPA Final Environmental Impact Statement April 2017 Record of Decision & Incidental Take Regulations September 2017? 25

26 Alaska ITRs in Beaufort Sea from present ITRs in Chukchi Sea from 1991-present IHAs in Arctic and Cook Inlet No EIS for any ITRs or IHAs (affirmed by Ninth Circuit) Currently: Lawsuit challenging Chukchi ITR Petition for new Beaufort ITR 26

27 The Atlantic Leases included in draft program Programmatic EIS Programmatic BiOp IHA applications BOEM permit applications 27

28 28

29 Atlantic G&G Permitting & Environmental Review SUBMIT APPLICATION TO BOEM BOEM site-specific Environmental Assessment includes Essential Fish Habitat (EFH) Assessment) Day Public Comment NMFS MMPA Submit application -- Office for Coastal Management States request to review activity If adverse effect on fisheries/efh determined, assessment with proposed mitigation measures submitted to NMFS for review Coordinate with Department of Defense Coordinate with NASA NEPA Draft Environmental Assessment 30-Day Public Comment If coastal effects, CZMA consistency determination --- Public Comment through State Process ESA Consultation -- If State approves- Consistency certification granted IHA Issued Public Comment Proposed IHA If State objectsappeal decision to Secretary of Commerce Objection reversed Objection upheld BOEM ISSUES G&G PERMIT Permit Process: 12 to 18 months G&G Permit NOT Granted 29

30 P-EIS P-BiOp IHA-Specific EA IHA-Specific BiOp IHA 30

31 The Atlantic Small Numbers and Negligible Impact PEIS: inflated Level A and Level B estimates Cumulative Impacts Four IHA applications New Mitigation Measures e.g., dolphin shutdown; 60-minute all clear ; 40 km buffers; NARW closures; minimum 500-m exclusion zones 31

32 Observations & Take-Aways

33 Observations Agency uncertainty Conservatism layered on conservatism Aggressive NGOs Science is a moving target Is pragmatism a thing of the past? Atlantic precursor to GOM permitting? How and when (and if) will all this play out? 33

34 Take-Aways Be an active participant in regulatory process Promote and develop good science data and published science is power *See: Build a solid record Don t agree to terms that aren t feasible Know the current regulatory/political landscape and anticipate changes Defend reasonable agency decisions 34

35 Thanks for your time. Ryan Steen Stoel Rives LLP